Australian Building and Construction Commissioner v Ravbar

[2018] FCA 1196

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Ravbar [2018] FCA 1196

File number:

QUD 881 of 2016

Judge:

REEVES J

Date of judgment:

10 August 2018

Catchwords:

INDUSTRIAL LAW – application seeking declarations that individual employees of the Construction, Forestry, Mining and Energy Union (CFMEU) contravened ss 340, 343 and 354 of the Fair Work Act 2009 (Cth) (FW Act) by allegedly giving directions and taking actions for the purpose of taking adverse action against and coercing a company into signing a CFMEU model enterprise agreement – four separate incidents – whether any of the alleged directions were given and whether any of the alleged actions were taken in fact with respect to any of the incidents – the relevant standard of proof – the principles on drawing inferences – what constitutes adverse action under ss 340 to 342 – what constitutes an intent to coerce under s 343 of the FW Act – what constitutes discrimination under s 354 of the FW Act – the operation of the reverse onus under s 361 of the FW Act – if any of the alleged contraventions occurred, whether some of the employees were liable for the actions of another under s 550 of the FW Act – whether the CFMEU was liable for the actions of its employees under ss 793 or 363 of the FW Act

Held:  one set of contraventions established

Legislation:

Building and Construction Industry Improvement Act 2005 (Cth)

Evidence Act 1995 (Cth)

Fair Work Act 2009 (Cth)

Workplace Relations Act 1996 (Cth)

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293; [2010] FCA 784

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 267 IR 130; [2017] FCA 157

Australian Building and Construction Commissioner v Hall (2017) 269 IR 28; [2017] FCA 274

Australian Building and Construction Commissioner v Hall [2018] FCAFC 83

Australian Building and Construction Commissioner v McConnell Dowell Constructors (Aust) Pty Ltd (2012) 203 FCR 345; [2012] FCAFC 93

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273; [2015] FCAFC 157

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50

Cozadinos v Construction, Forestry, Mining and Energy Union [2012] FCA 46

Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463; [1999] FCA 1108

Director of the Fair Work Building Industry Inspectorate vRobinson (2016) 241 FCR 338; [2016] FCA 525

Director, Fair Work Building Industry Inspectorate vADCO Constructions Pty Ltd (No 2) [2016] FCA 1463

Esso Australia Pty Ltd v Australian Workers’ Union (2015) 253 IR 304; [2015] FCA 758

Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39; [2016] FCAFC 72

Esso Australia Pty Ltd v Australian Workers’ Union (2017) 350 ALR 404; [2017] HCA 54

Fair Work Ombudsman v Australian Workers’ Union (2017) 271 IR 139; [2017] FCA 528

Jones v Dunkel (1959) 101 CLR 298

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70

National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114; [2002] FCA 441

Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244; [2012] FCAFC 63

R v Robinson [1977] Qd R 387

Tattsbet Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62

Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172; [2013] FCAFC 160

Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441; [2009] FCA 223

Heydon JD, Cross on Evidence (8^th Australian ed, 2010)

Edelman J and Bant E, Unjust Enrichment (2^nd ed, Hart Publishing, 2016)

Date of hearing:

7 February 2018

Registry:

Queensland

Division:

General Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

520

Counsel for the Applicant:

C Murdoch QC and A Freeman

Solicitor for the Applicant:

Ashurst Australia

Counsel for the Respondents:

C Dowling and CA Massy

Solicitor for the Respondents:

Hall Payne Lawyers

ORDERS

QUD 881 of 2016

BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant

AND:

MICHAEL RAVBAR

First Respondent

PETER CLOSE

Second Respondent

ANDREW SUTHERLAND (and others named in the Schedule)

Third Respondent

JUDGE:	REEVES J
DATE OF ORDER:	10 AUGUST 2018

THE COURT ORDERS THAT:

1.The parties are to prepare an appropriate form of orders to give effect to these reasons.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REEVES J:

1. In this proceeding, the Australian Building and Construction Commissioner claimed that, from about early to mid 2012 to about October 2012, various officials and organisers of the Construction, Forestry, Mining and Energy Union (CFMEU) took action against a company called Universal Cranes Pty Ltd to force it to enter into an enterprise agreement on terms which reflected the model agreement adopted by the CFMEU. In doing so, the Commissioner alleged that those persons, the respondents to this proceeding, contravened various provisions of the Fair Work Act 2009 (Cth) (the FW Act). In particular, the Commissioner relied upon four incidents that he alleged occurred between approximately July and October 2012 at two large civil construction projects in Brisbane on which Universal Cranes was engaged as a subcontractor: the Legacy Way project and the Port Connect project. In addition to one or more of the respondents, all of those incidents involved a Mr Paul Cradden who was, at the time, employed by the CFMEU as an organiser.

2. Ultimately, I have concluded that three of those incidents did not involve any contraventions of the FW Act. However, I have concluded that the fourth, and final one, did. My reasons for so concluding are set out hereunder. As appears in the index below, the structure I have followed in these reasons is, first, to describe the principal participants involved and the factual background to the four incidents mentioned above. Next, I have used the pleadings to identify the main issues that arise for determination and then set out the provisions of the FW Act relating to those issues and the principles bearing on those provisions. And finally, I have summarised and then analysed the evidence relating to the four incidents and the contextual circumstances surrounding them to explain why I consider the contraventions alleged either did not occur, or did occur, as the case may be.

THE PRINCIPAL PARTICIPANTS	[3]
THE FOUR INCIDENTS	[5]
THE SURROUNDING EVENTS	[10]
THE ALLEGED CONTRAVENTIONS	[20]
The first Legacy Way incident	[20]
The second Legacy Way incident	[25]
The second Port Connect incident	[34]
The third Port Connect incident	[42]
Liability of the CFMEU	[50]
Alleged contraventions not pursued	[53]
THE RELEVANT LEGISLATIVE PROVISIONS AND THE RELATED PRINCIPLES	[56]
THE WITNESSES	[104]
General observations	[104]
Mr Cradden’s evidence	[109]
Mr Smith’s evidence	[126]
Mr Toyer’s evidence	[131]
Mr Close’s evidence	[135]
Mr Ravbar’s evidence	[140]
Mr Ingham’s evidence	[144]
Mr Sutherland	[145]
THE CONTEXTUAL ISSUES RELATING TO THE FOUR INCIDENTS	[146]
The contextual issues relating to the two Legacy Way incidents	[146]
The contextual issues relating to the Port Connect incidents	[155]
The state of the negotiations between Universal Cranes and the CFMEU throughout 2012	[161]
Mr Smith’s evidence	[161]
Mr Close’s evidence	[203]
Mr Ravbar’s evidence	[216]
Mr Cradden’s evidence	[234]
Mr Ingham’s evidence	[237]
The discussions at CFMEU organisers’ meetings in 2012	[241]
The CFMEU staffing structure in 2012	[243]
The responsibilities of CFMEU organisers	[246]
Organisers’ meetings	[251]
Universal Cranes’ hiring arrangements at the Legacy Way project	[278]
THE TWO LEGACY WAY INCIDENTS	[283]
Mr Cradden’s evidence	[284]
Mr Atkinson’s evidence	[296]
Mr Young’s evidence	[309]
Mr Toyer’s evidence	[321]
Mr Close and the directions	[328]
Mr Ravbar and the directions	[331]
Mr Ingham and the directions	[333]
THE TWO PORT CONNECT INCIDENTS	[334]
Mr Cradden’s evidence	[335]
Mr Zoller’s evidence	[350]
Mr Toyer’s evidence	[367]
Mr Close and the directions for the three Port Connect incidents	[385]
Mr Ravbar and the directions for the three Port Connect incidents	[392]
Mr Ingham and the directions	[398]
Mr Smith’s evidence	[400]
ANALYSIS – THE FOUR INCIDENTS AND THE ALLEGED CONTRAVENTIONS	[403]
Resolving the contextual issues	[403]
The first Legacy Way incident contraventions	[439]
The second Legacy Way incident contraventions did not occur	[457]
The second Port Connect incident contraventions did not occur	[467]
The third Port Connect incident contraventions did occur	[481]
CONCLUSIONS	[510]

THE PRINCIPAL PARTICIPANTS

1. Universal Cranes is a wholly owned subsidiary of the Smithbridge Group Pty Ltd. In 2012, it carried on business as a mobile crane hire company providing “wet” and “dry” hire cranes to the construction industry in Queensland. A “wet” hire refers to the hiring of a crane, along with an operator, fuel, and maintenance and a “dry” hire refers to the hiring of cranes without such accompaniments. At that time, it employed approximately 100 to 120 workers, most of whom were eligible to be members of the CFMEU. Mr Albert Smith was the sole director of the company and Mr Joachim Schalck was its manager.

2. The four individual respondents to this proceeding, Mr Ravbar, Mr Close, Mr Toyer, and Mr Sutherland, were, in 2012, officials of, or organisers employed by, the CFMEU. Mr Ravbar held the position of the Queensland and Northern Territory Divisional Branch Secretary. Mr Close was an Assistant Divisional Branch Secretary for Queensland and the Northern Territory, and Mr Toyer and Mr Sutherland were both employed by the CFMEU as organisers.

   THE FOUR INCIDENTS

3. Two of the four incidents mentioned above allegedly occurred at the Legacy Way project. That project involved the construction of a road tunnel from Victoria Park near the Brisbane CBD to the suburb of Toowong. The principal contractor for the project was an entity called the Transcity Joint Venture. Mr Jeffrey Young was the General Superintendent for the project and Mr Michael Atkinson was the General Foreman Structures. Mr Atkinson reported to Mr Young.

4. The two Legacy Way incidents allegedly occurred in July 2012. The first incident allegedly involved Mr Cradden, the CFMEU organiser mentioned above, and Mr Atkinson. The second incident allegedly involved Mr Cradden, Mr Toyer, Mr Atkinson and Mr Young. Both incidents involved Universal Cranes’ mobile cranes which were used by subcontractors on the Legacy Way project site.

5. The other two incidents allegedly occurred at the Port Connect project. That project involved the upgrading of the existing motorway from the Gateway Arterial Road through to the Port of Brisbane. The BMD Seymour Whyte Joint Venture was the principal contractor for the project and Mr Jason Zoller was the Construction Manager.

6. The first of the two Port Connect incidents involved Mr Cradden, Mr Toyer and Mr Zoller. For reasons that will be explained later, that incident will be referred to in these reasons as “the second Port Connect incident”. The second of the two Port Connect incidents (for similar reasons described in these reasons as “the third Port Connect incident”) involved Mr Cradden, Mr Sutherland and Mr Zoller.

7. The second Port Connect incident occurred in July 2012 and the third Port Connect incident occurred in October 2012.

   THE SURROUNDING EVENTS

8. The relationship between Universal Cranes (then called Universal Contracting) and the CFMEU began in about 1994 when that company first entered into an enterprise agreement with the CFMEU. I interpose to note that I have generally used the FW Act expression “enterprise agreement” throughout these reasons notwithstanding that at various times in the history of this matter such agreements bore different descriptors, for example “certified agreement”, “Australian Workplace Agreement”, “collective agreement” or “enterprise bargaining agreement”. However, where I have quoted a witness’ evidence, I have generally retained the descriptor that witness used.

9. In the ensuing years, the original 1994 enterprise agreement was replaced by a series of new enterprise agreements based on similar terms. Mr Close conducted the negotiations on behalf of the CFMEU for all of those agreements.

10. In 2003, Mr Smith purchased Universal Cranes. By that time, most of the company’s employees were members of the CFMEU. Shortly after the purchase, pursuant to a commitment given by its previous owners, Universal Cranes entered into a new enterprise agreement to replace the last of the series of agreements mentioned above. That agreement was on similar terms to its predecessors. When that agreement expired in approximately 2005 or 2006, Mr Close entered into negotiations with Mr Smith for an enterprise agreement to replace it. That enterprise agreement was to be based on the CFMEU’s then model enterprise agreement. Some time later, those negotiations failed and Universal Cranes entered into a non-union enterprise agreement with its employees: the Universal Cranes Pty Ltd Employee Collective Agreement 2008 (the 2008 EA). That agreement was due to expire in 2011 or 2012.

11. In early to mid 2012, Mr Smith contacted Mr Close and inquired about the terms upon which Universal Cranes and the CFMEU might enter into a new enterprise agreement to replace the 2008 EA based on the terms of the CFMEU’s model agreement. This contact appears to have included a telephone call Mr Smith made to either Mr Sutherland or Mr Close in June 2012. It was then followed by an email Mr Smith sent on 21 June 2012. No agreement resulted from these communications.

12. At about the same time, Mr Smith negotiated with Universal Cranes’ employees for a new non-union enterprise agreement to replace the 2008 EA. A majority of the employees voted in favour of that enterprise agreement at a ballot conducted on 9 July 2012. The resulting agreement was approved by the Fair Work Commission on 2 August 2012: the Universal Cranes Pty Ltd Employee Collective Agreement 2012 (the 2012 EA).

13. As has already been noted above, three of the four incidents at the centre of this proceeding occurred in July 2012: two at the Legacy Way project and one (the second Port Connect incident) at the Port Connect project.

14. In mid August 2012, there was a further exchange of emails between Mr Smith and Mr Close concerning the possibility of Universal Cranes and the CFMEU entering into an enterprise agreement based on the CFMEU model agreement. Approximately a week later, on 23 August 2012, a meeting was held at the CFMEU offices at Bowen Hills in Brisbane. The attendees at that meeting included Mr Smith and Mr Schalck, on behalf of Universal Cranes, and Mr Ravbar, Mr Close and Mr Ingham, and potentially Mr Sutherland, on behalf of the CFMEU. The primary purpose of this meeting was to discuss the possibility of Universal Cranes and the CFMEU entering into a CFMEU model agreement. No agreement was reached at that meeting.

15. Approximately two months later, in October 2012, the fourth of the incidents at the centre of this proceeding occurred at the Port Connect project (the third Port Connect incident).

16. In mid 2013, Universal Cranes and the CFMEU did eventually enter into a CFMEU model agreement. However, its terms contained some variations to the standard CFMEU model agreement.

17. Finally, it should be noted that, in 2011 or 2012, Universal Cranes entered into a plant hire agreement to provide a 100 tonne crawler crane to a subcontractor working on the Legacy Way project site. That crane was hired on a “dry” hire basis, although there is a dispute, which I will come to later in these reasons, as to whether it remained so throughout the hire period. At about the same time, Universal Cranes entered into a similar plant hire agreement with BMD Seymour Whyte Joint Venture to provide portable cranes for the Port Connect project. The cranes hired under that agreement were hired on a “wet” hire basis.

    THE ALLEGED CONTRAVENTIONS

    The first Legacy Way incident

18. In his amended statement of claim (the ASOC), the Commissioner pleaded the following facts as being material to the contraventions that allegedly occurred during the first Legacy Way incident (ASOC at [22]–[26]):

    22.In or about mid 2012 Mr Cradden stated to Mr Close to the effect that he had seen a Universal Cranes crane operating at the Legacy Way project.

    23.Following the conversation pleaded in paragraph 22 above, Mr Close directed Mr Cradden to attend at the Legacy Way Project to stop the Universal Cranes crane from working, by stating words to the effect of “We need that crane off the job, we need it to stop work” and “You had better go over there and stop the crane from working or get it removed” (“the First Direction”).

    24.      Mr Close gave the First Direction:

    (a)because Universal Cranes was seeking to make, or had made, an enterprise agreement directly with Universal Cranes’ employees on terms that were different to the CFMEU pattern agreement;

    (b)because Universal Cranes had not, or was not, seeking to enter into a CFMEU pattern agreement with Universal Cranes’ employees;

    (c)to force Universal Cranes to seek to enter into a CFMEU pattern agreement with Universal Cranes’ employees.

    25.Mr Cradden attended at the Legacy Way Project and stated to the site supervisor, Geoff Young, by reference to the Universal Cranes crawler crane, to the effect that:

    (a)“You need to get this crane off this job”;

    (b)‘‘Well it needs to go. Universal Cranes is a ‘non-EBA company’”.

    26.The First Direction had the effect, directly or indirectly, of prejudicing Universal Cranes in relation to a contract for services in that it caused Mr Cradden to seek to stop Universal Cranes from performing the crane services for which it had been hired for the Legacy Way Project.

    The term “CFMEU pattern agreement” was defined earlier in the ASOC to be “an enterprise agreement under the FW Act that covered the CFMEU and contained terms acceptable to the CFMEU” (ASOC at [13](b)).

19. Based upon the facts set out above, the Commissioner alleged that Mr Close had contravened ss 340, 343 and 354 of the FW Act in the following terms. First, he alleged that Mr Close (ASOC at [29]) had, by the actions described in [18]–[26] of the ASOC, contravened s 340 because:

    27.… [he] took adverse action against Universal Cranes in mid 2012 for the purposes of s.342, Item 7, of the FW Act.

    [and]

    28.… [he took that] action against Universal Cranes because Universal Cranes:

    (a)had exercised a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(ii) of the FW Act;

    (b)had not exercised a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(ii) of the FW Act;

    (c)proposed not to exercise a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(iii) of the FW Act.

20. Secondly, he alleged that Mr Close (ASOC at [31]) had, by the actions described in [23] of the ASOC above, taken action in breach of s 343 of the FW Act because those actions were taken:

    30.… with an intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act to make a CFMEU pattern agreement in that:

    (a)[he] intended to apply pressure to Universal Cranes by interfering with its capacity to perform work and earn income so as to force it to seek to make an enterprise agreement on the terms of the CFMEU pattern agreement;

    (b)the exertion of the pressure was unlawful, illegitimate and/or unconscionable in that it was:

    (i) in contravention of s.340 of the FW Act;

    (ii)action which was adverse to Universal Cranes that neither Mr Close nor the CFMEU had any entitlement to undertake.

1. Thirdly, he alleged that Mr Close (ASOC at [34]) had, by the actions described in [23] of the ASOC above, contravened s 354 of the FW Act in that he took that action because (ASOC at [32]):

   (a)Universal Cranes’ employees were not covered by a CFMEU pattern agreement;

   (b)Universal Cranes proposed that Universal Cranes’ employees would not be covered by a CFMEU pattern agreement.

   and that conduct “disadvantaged Universal Cranes in that Universal Cranes was unable to perform cranage services scheduled on the day” (ASOC at [33]).

2. As well as denying all of the alleged contraventions, the salient aspects of the respondents’ amended defence with respect to this incident were as follows:

   (a)Mr Close denied the allegations in [22]–[24] of the ASOC and the other four respondents said they did not know, and did not therefore admit, those allegations (amended defence at [22]–[24]);

   (b)all of the respondents said that they did not know, and therefore did not admit, the allegations in [25] of the ASOC (amended defence at [25]); and

   (c)as well as denying that the alleged direction had occurred, all of the respondents denied that the conduct pleaded in [26] and [27]–[33](a) and [34] of the ASOC amounted to “prejudicing Universal Cranes in respect of the contract because Mr Young took no steps in response to Mr Cradden’s conduct” (amended defence at [26]); and

   (d)all of the respondents, in addition, claimed that the conduct pleaded did not disadvantage “Universal Cranes in respect of the contract because Mr Young took no steps in response to Mr Cradden’s conduct” (amended defence at [33](b) and [34]).

   The second Legacy Way incident

3. In his ASOC, the Commissioner pleaded the following facts as being material to the contraventions that allegedly occurred during the second Legacy Way incident (ASOC at [35]–[39]):

   35.In or about July 2012 Mr Cradden attended an Organisers’ Meeting that was conducted by Mr Ravbar and attended by Mr Close.

   36.During the Organisers’ Meeting, Universal Cranes was discussed as an agenda item and a meeting attendee stated to the effect that a Universal Cranes crawler crane had been seen again at the Legacy Way Project.

   37.Mr Ravbar or Mr Close, in the presence of and acting in conjunction with the other, stated at the Organiser’s Meeting to Mr Cradden to the effect that:

   (a)Mr Cradden was to return to the Legacy Way Project and stop the Universal Cranes crawler crane from working;

   (b)Mr Cradden was to take Mr Toyer with him to stop the crane (the “Second Direction”).

   38.The Second Direction was given:

   (a)because Universal Cranes was seeking to make, or had made, an enterprise agreement directly with Universal Cranes’ employees on terms that were different to the CFMEU pattern agreement;

   (b)because Universal Cranes had not, or was not, seeking to enter into a CFMEU pattern agreement with Universal Cranes’ employees;

   (c)to force Universal Cranes to seek to enter into a CFMEU pattern agreement with Universal Cranes’ employees.

   39.Mr Cradden and Mr Toyer attended at the Legacy Way Project and in the presence of and acting in conjunction with the other:

   (a)stood in front of the tracks of the Universal Cranes crawler crane;

   (b)Mr Cradden stated to the site supervisor, Mr Young, words to the effect, “We’re here to hold the crane. It has to go”;

   (c)Mr Young stated to the effect, ‘Why?”;

   (d)Mr Cradden stated to Mr Young to the effect, “Because it does. We won’t be leaving until it’s moved. Use some other crane”;

   (e)Mr Young stated to the effect, “Well it’s going today anyway. It’s being removed later today from site, this particular one”;

   (f)Mr Cradden stated to Mr Young to the effect, “You know what will happen if it’s not moved, we’ll just stay here until it is”.

4. Based upon the facts set out above, the Commissioner alleged that Mr Ravbar, Mr Close and Mr Toyer had contravened ss 340, 343 and 354 of the FW Act in the following terms. First, he alleged that they had contravened s 340 (ASOC at [45]) because:

   40.Mr Toyer took the action pleaded above:

   (a)because Universal Cranes was seeking to make, or had made, an enterprise agreement directly with Universal Cranes’ employees on terms that were different to the CFMEU pattern agreement;

   (b)because Universal Cranes had not, or was not, seeking to enter into a CFMEU pattern agreement with Universal Cranes’ employees;

   (c)to force Universal Cranes to seek to enter into a CFMEU pattern agreement with Universal Cranes’ employees.

   41.The Second Direction had the effect, directly or indirectly, of prejudicing Universal Cranes in relation to a contract for services in that it caused Mr Cradden and Mr Toyer to take action to stop Universal Cranes from performing crane services at the Legacy Way Project.

   42.The actions of Mr Toyer pleaded in paragraph 39 above had the effect, directly or indirectly, of prejudicing Universal Cranes in relation to a contract for services in that Universal Cranes was stopped from performing crane services at the Legacy Way Project.

   43.… [Mr Ravbar, Mr Close and Mr Toyer therefore] took adverse action against Universal Cranes in July 2012 for the purposes of s.342, Item 7, of the FW Act.

   44.… [and they] took [that] action against Universal Cranes because Universal Cranes:

   (a)had exercised a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(ii) of the FW Act;

   (b)had not exercised a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(ii) of the FW Act;

   (c)proposed not to exercise a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(iii) of the FW Act.

5. Secondly, he alleged they had contravened s 343 of the FW Act, first, with respect to Mr Ravbar (ASOC at [47]), by the actions described in [37] of the ASOC above, in that that action was taken:

   46.… with an intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act to make a CFMEU pattern agreement in that:

   (a)[he] intended to apply pressure to Universal Cranes by interfering with its capacity to perform work and earn income so as to force it to seek to make an enterprise agreement on the terms of the CFMEU pattern agreement;

   (b)the exertion of the pressure was unlawful, illegitimate and/or unconscionable in that it was:

   (i) in contravention of s.340 of the FW Act;

   (ii)action which was adverse to Universal Cranes that neither [he] nor the CFMEU had any entitlement to undertake.

6. Further, with respect to Mr Close (ASOC at [49]), by the actions described in [37] of the ASOC above, in that that action was taken:

   48.… with an intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act to make a CFMEU pattern agreement in that:

   (a)[he] intended to apply pressure to Universal Cranes by interfering with its capacity to perform work and earn income so as to force it to seek to make an enterprise agreement on the terms of the CFMEU pattern agreement;

   (b)the exertion of the pressure was unlawful, illegitimate and/or unconscionable in that it was:

   (i) in contravention of s.340 of the FW Act;

   (ii)action which was adverse to Universal Cranes that neither [he] nor the CFMEU had any entitlement to undertake.

7. And further, with respect to Mr Toyer (ASOC at [51]), by the actions described in [39] of the ASOC above, in that that action was taken:

   50.… with an intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act to make a CFMEU pattern agreement in that:

   (a)[he] intended to apply pressure to Universal Cranes by interfering with its capacity to perform work and earn income so as to force it to seek to make an enterprise agreement on the terms of the CFMEU pattern agreement;

   (b)the exertion of the pressure was unlawful, illegitimate and/or unconscionable in that it was:

   (i) in contravention of s.340 of the FW Act;

   (ii)action which was adverse to Universal Cranes that neither [he] nor the CFMEU had any entitlement to undertake.

8. Thirdly, he alleged they had contravened s 354 of the FW Act, first, with respect to Mr Ravbar (ASOC at [54]) and Mr Close (ASOC at [57]), by the actions described in [37] of the ASOC above, in that they took that action because (ASOC at [52] and [55] respectively):

   (a)Universal Cranes’ employees were not covered by a CFMEU pattern agreement;

   (b)Universal Cranes proposed that Universal Cranes’ employees would not be covered by a CFMEU pattern agreement.

   and that conduct “disadvantaged Universal Cranes in that Universal Cranes was unable to perform cranage services scheduled on the day” (ASOC at [53] and [56] respectively).

9. Further, with respect to Mr Toyer (ASOC at [60]), by the actions described in [39] of the ASOC above, in that he took that action because (ASOC at [58]):

   (a)Universal Cranes’ employees were not covered by a CFMEU pattern agreement;

   (b)Universal Cranes proposed that Universal Cranes’ employees would not be covered by a CFMEU pattern agreement.

   and that conduct “disadvantaged Universal Cranes in that Universal Cranes was unable to perform cranage services scheduled on the day” (ASOC at [59]).

10. Fourthly and finally, with respect to Mr Ravbar (ASOC at [61]) and Mr Close (ASOC at [62]), the Commissioner relied upon s 550 of the FW Act to allege that they were each liable for Mr Toyer’s contraventions of the FW Act as described above (at [45], [51] and [60] of the ASOC) because they:

    (a)[had] aided, abetted, counselled and/or procured the contraventions;

    (b)[were] directly or indirectly knowingly concerned in or a party to the contraventions;

    (c)[had] conspired with Mr Toyer to effect the contraventions.

11. As well as denying all of the alleged contraventions, the salient aspects of the respondents’ amended defence with respect to this incident were as follows:

    (a)with the exception that the fifth respondent, the CFMEU, claimed it did not know, and did not therefore admit, the allegations in [35] of the ASOC, the other four respondents denied the allegations in [35] and all five respondents denied the allegations in [36]–[38] of the ASOC (amended defence at [35]–[38]);

    (b)Mr Toyer denied the allegations in [39] of the ASOC because he claimed he did not engage in any contravening conduct when in attendance at the Legacy Way project; and the other four respondents claimed that they did not know, and did not therefore admit, those allegations (amended defence at [39]);

    (c)Mr Toyer also denied the allegations in [40] of the ASOC for the same reason as in (b) above and because he claimed he did not know of the matters alleged in [40](a) and (b) of the ASOC, namely the enterprise agreement rationale, and therefore he claimed he did not have the intention pleaded in [40](c); and the other four respondents claimed that they did not know, and did not therefore admit, those allegations (amended defence at [40]);

    (d)all the respondents denied the allegations of prejudice in [41] of the ASOC because they claimed “no such direction was given” (amended defence at [41]);

    (e)all the respondents denied the allegations of prejudice in [42] of the ASOC because of the matters pleaded in [39] of the amended defence, namely because Mr Toyer claimed he had not engaged in any contravening conduct (amended defence at [42]);

    (f)all the respondents denied the allegations in [43] of the ASOC because they claimed that none of them took any adverse action as alleged (amended defence at [43]);

    (g)all of the respondents denied the allegations in [52]–[60] of the ASOC because they claimed none of them took any adverse action and the allegations in [58]–[60] were additionally denied on the basis that Mr Toyer did not know of the matters alleged in [40](a) and (b) of the ASOC, namely the enterprise agreement rationale, and therefore he claimed he did not have the intention pleaded in [40](c); and

    (h)all the respondents denied the allegations in [61] and [62] of the ASOC because: of the matters pleaded in [40](b) of the amended defence, namely the claimed lack of knowledge of the enterprise agreement rationale and consequential lack of intention; and/or because of the matters pleaded in [43] of the amended defence, namely the denial of any adverse action; and/or because they claimed that “[Mr Close] did not know [Mr Toyer’s] intentions or reasons for acting” (amended defence at [61]–[62]).

    The second Port Connect incident

12. In his ASOC, the Commissioner pleaded the following facts as being material to the contraventions that allegedly occurred during the second Port Connect incident (ASOC at [82]–[90]):

    82.In mid 2012, at an Organisers’ Meeting, Mr Ravbar stated words to the effect that he had driven past the Project and saw a Universal Cranes crane operating at the Project.

    83.Mr Ravbar said to Mr Cradden words to the effect, “Why is that crane still operating on it?”.

    84.Mr Ravbar then told Mr Cradden to the effect that he should go [to] the Project the next morning and to take Mr Toyer with him to stop the crane from working.

    85.Later that day, Mr Cradden and Mr Toyer discussed the means by which they could have the Universal Cranes crawler crane removed from the Project.

    86.Mr Cradden and Mr Toyer had a discussion in which they agreed that they would attend the project the next morning and try to identify a safety issue with the crane that they could rely upon so as to disrupt its use.

    87.Mr Cradden and Mr Toyer in the presence of and acting in conjunction with the other attended at the Project and stood in front of a Universal Cranes crawler crane.

    88.Mr Cradden and Mr Toyer performed a safety audit and identified that the crawler crane did not have a wind meter.

    89.The lack of a wind meter was a minor safety issue that did not require the crawler crane to be removed from the Project.

    90.Mr Cradden and Mr Toyer in the presence of and acting in conjunction with the other spoke with Mr Zoller and Mr Cradden said to the effect:

    (a)“This crane has to go. The wind meter is not operating properly’”;

    (b)“Look this is nothing personal, it’s not against you, it’s against Universal”.

13. Based upon the facts set out above, the Commissioner alleged that Mr Ravbar and Mr Toyer had contravened ss 340, 343 and 354 of the FW Act in the following terms. First, he alleged that they had contravened s 340 (ASOC at [96]) because:

    91.Mr Toyer took the action pleaded above:

    (a)because Universal Cranes was seeking to make, or had made, an enterprise agreement directly with Universal Cranes’ employees on terms that were different to the CFMEU pattern agreement;

    (b)because Universal Cranes had not, or was not, seeking to enter into a CFMEU pattern agreement with Universal Cranes’ employees;

    (c)to force Universal Cranes to seek to enter into a CFMEU pattern agreement with Universal Cranes’ employees.

    92.The direction given by Mr Ravbar pleaded in paragraph 84 above had the effect, directly or indirectly, of prejudicing Universal Cranes in relation to a contract for services in that it caused Mr Cradden and Mr Toyer to seek to stop Universal Cranes from performing the crane services for which it had been hired for the Project.

    93.The actions of Mr Toyer pleaded in paragraph 85 to 91 above had the effect, directly or indirectly, of prejudicing Universal Cranes in relation to a contract for services in that Mr Cradden and Mr Toyer sought to stop Universal Cranes from performing the crane services for which it had been hired for the Project.

    94.… [they] took adverse action against Universal Cranes for the purposes of s.342, Item 7, of the FW Act.

    95.… [and they] took [that] action against Universal Cranes because Universal Cranes:

    (a)had exercised a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(ii) of the FW Act;

    (b)had not exercised a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(ii) of the FW Act;

    (c)proposed not to exercise a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(iii) of the FW Act.

14. Secondly, he alleged they had contravened s 343 of the FW Act, first, with respect to Mr Ravbar (ASOC at [98]), by the actions described in [84] of the ASOC above, in that that action was taken:

    97.… with an intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act to make a CFMEU pattern agreement in that:

    (a)[he] intended to apply pressure to Universal Cranes by interfering with its capacity to perform work and earn income so as to force it to seek to make a CFMEU pattern agreement;

    (b)the exertion of the pressure was unlawful, illegitimate and/or unconscionable in that it was:

    (i)in contravention of s.340 of the FW Act;

    (ii)action which was adverse to Universal Cranes that neither [he] nor the CFMEU had any entitlement to undertake.

15. Further, with respect to Mr Toyer (ASOC at [100]), by the actions described in [85]–[91] of the ASOC above, in that that action was taken:

    99.… with an intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act to make a CFMEU pattern agreement in that:

    (a)[he] intended to apply pressure to Universal Cranes by interfering with its capacity to perform work and earn income so as to force it to seek to make a CFMEU pattern agreement;

    (b)the exertion of the pressure was unlawful, illegitimate and/or unconscionable in that it was:

    (i)in contravention of s.340 of the FW Act;

    (ii)action which was adverse to Universal Cranes that neither [he] nor the CFMEU had any entitlement to undertake.

16. Thirdly, he alleged they had contravened s 354 of the FW Act, first with respect to Mr Ravbar (ASOC at [103]), by his actions described in [84] of the ASOC above, in that he took that action because (ASOC at [101]):

    (a)Universal Cranes’ employees were not covered by a CFMEU pattern agreement;

    (b)Universal Cranes proposed that Universal Cranes’ employees would not be covered by a CFMEU pattern agreement.

    and that conduct “disadvantaged Universal Cranes in that Universal Cranes was … prevented from performing cranage services” (ASOC at [102]).

17. Further, with respect to Mr Toyer (ASOC at [106]), by his actions described in [85]–[91] of the ASOC above, in that he took that action because (ASOC at [104]):

    (a)Universal Cranes’ employees were not covered by a CFMEU pattern agreement;

    (b)Universal Cranes proposed that Universal Cranes’ employees would not be covered by a CFMEU pattern agreement.

    and that conduct “disadvantaged Universal Cranes in that Universal Cranes was … prevented from performing cranage services” (ASOC at [105]).

18. Fourthly and finally, with respect to Mr Ravbar (ASOC at [107]), the Commissioner relied upon s 550 of the FW Act to allege that he was liable for Mr Toyer’s contraventions of the FW Act as described above (at [96], [100] and [106] of the ASOC) because he:

    (a)[had] aided, abetted, counselled and/or procured the contraventions;

    (b)was directly or indirectly knowingly concerned in or a party to the contraventions;

    (c)[had] conspired with Mr Toyer to effect the contraventions.

19. As well as denying all of the alleged contraventions, the salient aspects of the respondents’ amended defence with respect to this incident were as follows:

    (a)the individual respondents denied the allegations in [82]–[84] because they claimed they were untrue and the fifth respondent, the CFMEU, claimed that it did not know, and did not therefore admit those allegations (amended defence at [82]–[84]);

    (b)all of the respondents denied the allegations in [96], [98], [100], [103] and [106] (amended defence at [96], [98], [100], [103] and [106]);

    (c)Mr Toyer:

    (i)denied the allegations in [85] and [86] because he claimed they were untrue and because “Mr Cradden contacted [him] and advised him that (amended defence at [85]):

    a.a member of the [CFMEU] at the Port Connect job had raised safety concerns; and

    b.[he] and Mr John Tucker were required to attend the site to assist Mr Cradden conduct a safety inspection.

    (ii)denied the allegations in [87] and said further “that he attended the site with Mr Cradden and Mr Tucker for the purposes of investigating suspected contravention of the Work Health and Safety Act 2011 (Qld)” (amended defence at [87]);

    (iii)admitted the allegations in [88] and said further that (amended defence at [88]):

    a.Mr Cradden, Mr Tucker and [he] conducted a safety inspection;

    b.they identified a number of safety issues which did not solely relate to the Universal Crane;

    c.they provided Mr Zoller with notice identifying the safety issues they had found; and

    d.[his] sole reason for providing the notice was that he thought the safety issues needed to be rectified.

    (iv)denied the allegations in [89] and said further “that an (sic – at) no time did [he] or Mr Tucker assert that the crane in question had to be removed from the site” (amended defence at [89]);

    (v)denied the allegations in [90] because they were untrue (amended defence at [90]);

    (vi)denied the allegations in [91] because of the matters pleaded in [85]–[89] above; and because “[f]urther and alternatively, the matters pleaded in paragraph 40 (b)” above (amended defence at [91]);

    (d)the other respondents, apart from Mr Toyer, claimed that they did not know, and did not therefore admit, the allegations in [85]–[91] above (amended defence at [85]–[91]);

    (e)all of the respondents denied the allegations in [92]–[94] because of the matters pleaded in [82]–[84], namely their claims that those allegations were untrue; alternatively because of the matters pleaded in [85]–[89], namely Mr Toyer’s description of this incident; and alternatively for [92]–[93], because “Universal Cranes were not prejudiced in any material way” (amended defence at [92]–[94]);

    (f)all of the respondents denied the allegations in [95], [97] and [101] because of the matters pleaded in [82]–[84], namely their claims that those allegations were untrue; and alternatively for [95], because of the matters pleaded in [85]–[89], namely Mr Toyer’s description of this incident; and because of the matters pleaded in [40](b), namely that Mr Toyer lacked the requisite knowledge and intention (amended defence at [95], [97] and [101]);

    (g)all of the respondents denied the allegations in [99] and [104] because of the matters pleaded in [85]–[89], namely Mr Toyer’s description of this incident; and alternatively because of the matters pleaded in [40](b), namely that Mr Toyer lacked the requisite knowledge and intention (amended defence at [99] and [104]);

    (h)all of the respondents denied the allegations in [105] because “Universal Cranes were not disadvantaged by [Mr Toyer’s] conduct” (amended defence at [105]); and

    (i)all of the respondents denied the allegations in [102] and [107] because of the matters pleaded in [82]–[84], namely their claims that those allegations were untrue; alternatively for [102] because “Universal Cranes were not prejudiced in any material way”; and alternatively for [107] because of the matters pleaded in [85]–[89], namely Mr Toyer’s description of this incident; alternatively because of the matters pleaded in [40](b), namely that Mr Toyer lacked the requisite knowledge and intention; and alternatively because Mr Ravbar did not know Mr Toyer’s “intentions or reasons for acting” (amended defence at [102] and [107]).

    The third Port Connect incident

1. In his ASOC, the Commissioner pleaded the following facts as being material to the contraventions that allegedly occurred during the third Port Connect incident (ASOC at [134]–[149]):

   134.In or about October 2012, Universal Cranes was discussed as an agenda item at an Organisers’ Meeting attended by Mr Cradden, Mr Sutherland, Mr Ravbar and Mr Close.

   135.Mr Ravbar told the Organisers’ Meeting words to the effect that the CFMEU was not getting any traction with Universal Cranes.

   136.Mr Ravbar directed organisers present at the Organisers’ Meeting to undertake a coordinated operation to disrupt multiple Universal Cranes cranes by saying words to the effect:

   (a)go to the Universal Cranes yard, park around the corner from the yard, follow the cranes as they leave and then stop the cranes from operating once the cranes arrive at their destination;

   (b)“follow the cranes and stop them from working”.

   137.Around 5.30am the following morning, Mr Cradden and a number of organisers including Mr Sutherland and Mr Toyer attended the Universal Cranes yard in Murarrie so that they could observe when the cranes left the yard but not be seen by Universal Cranes’ employees working at the yard.

   138.At around 6.00am, a Universal Cranes franna crane left the yard. Mr Cradden and Mr Sutherland followed the crane in their vehicles. The crane attended the Project.

   139.Mr Cradden and Mr Sutherland drove their vehicles up a slip road and parked directly behind the franna crane.

   140.The effect of Mr Cradden’s and Mr Sutherlands’ actions pleaded in paragraphs 138 and 139 was that:

   (a)the franna crane was blocked by their vehicles and concrete barriers, and could not operate;

   (b)work at the Project in the area in which the crane was located stopped.

   141.Mr Zoller attended where the franna crane was located and was told by Mr Cradden in the presence of and acting in conjunction with Mr Sutherland words to the effect:

   (a)“Well we’re blocking the crane and it ain’t going anywhere. We told you what would happen. You need to get rid of them and we can recommend some other crane companies that you can use”;

   (b)Universal Cranes are a problem for this site and if Mr Zoller continues to use them, there would be stoppages and disruptions.

   142.As at October 2012 Mr Zoller was still the Construction Manager at the Project.

   143.Prior to and as at October 2012 Universal Cranes provided cranage services to the Project, including casual franna crane hire.

   144.Approximately one hour after the arrival of Mr Cradden and Mr Sutherland at the site, Mr Zoller directed the driver of the franna crane to take the crane back to the Universal Cranes yard.

   145.The franna crane did not perform any work that day on the Project.

   146.Subsequently, Mr Cradden and Mr Sutherland had a conversation with Mr Zoller in which Mr Cradden or Mr Sutherland stated to the effect that the Project would continue to have problems and they will continue to stop the cranes from operating as long as the Project used Universal Cranes.

   147.Mr Sutherland handed Mr Zoller a document listing “approved CFMEU crane contractors”.

   148.Mr Sutherland said words to the effect, “To keep your Project going use one of these companies”.

   149.Following the events of October 2012, the project utilised another crane company to perform regular ongoing day work.

2. Based upon the facts set out above, the Commissioner alleged that Mr Ravbar and Mr Sutherland had contravened ss 340, 343 and 354 of the FW Act in the following terms. First, he alleged that they had contravened s 340 (ASOC at [155]) because:

   150.Mr Ravbar and Mr Sutherland took the action pleaded above:

   (a)because Universal Cranes had made an enterprise agreement directly with Universal Cranes’ employees on terms that were different to the CFMEU pattern agreement;

   (b)because Universal Cranes had not, or was not, seeking to enter into a CFMEU pattern agreement with Universal Cranes’ employees;

   (c)to force Universal Cranes to seek to enter into a CFMEU pattern agreement with Universal Cranes’ employees.

   151.The direction given by Mr Ravbar pleaded in paragraph 136 above had the effect, directly or indirectly, of prejudicing Universal Cranes in relation to a contract for services in that it caused Mr Cradden and Mr Sutherland to stop Universal Cranes from performing work that it had been engaged to perform for the Project.

   152.The actions of Mr Sutherland pleaded above had the effect, directly or indirectly, of prejudicing Universal Cranes in relation to a contract for services in that Universal Cranes was prevented from performing the crane services in or about October 2012 for which it had been hired by the Project, and from being hired for ongoing day work thereafter.

   153.… [they themselves] took adverse action against Universal Cranes in or about October 2012 for the purposes of s.342, Item 7, of the FW Act.

   154.… [and they] took [that] action against Universal Cranes in or about October 2012 because Universal Cranes:

   (a)had exercised a workplace right under s.341 (1)(b) of the FW Act for the purposes of s.340(1)(a)(ii) of the FW Act;

   (b)had not exercised a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(ii) of the FW Act;

   (c)proposed not to exercise a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(iii) of the FW Act.

3. Secondly, he alleged they had contravened s 343 of the FW Act, with respect to Mr Ravbar (ASOC at [157]), by the actions described in [136] of the ASOC above, in that that action was taken:

   156.… with an intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act to make a CFMEU pattern agreement in that:

   (a)[he] intended to apply pressure to Universal Cranes by interfering with its capacity to perform work and earn income so as to force it to make a CFMEU pattern agreement;

   (b)the exertion of the pressure was unlawful, illegitimate and/or unconscionable in that it was:

   (i) in contravention of s.340 of the FW Act;

   (ii)action which was adverse to Universal Cranes that neither [he] nor the CFMEU had any entitlement to undertake.

4. Further, with respect to Mr Sutherland (ASOC at [159]), by the actions described in [137]–[150] of the ASOC above, in that that action was taken:

   158.… with an intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act to make a CFMEU pattern agreement in that:

   (a)[he] intended to apply pressure to Universal Cranes by interfering with its capacity to perform work and earn income so as to force it to make a CFMEU pattern agreement;

   (b)the exertion of the pressure was unlawful, illegitimate and/or unconscionable in that it was:

   (i) in contravention of s.340 of the FW Act;

   (ii)action which was adverse to Universal Cranes that neither [he] nor the CFMEU had any entitlement to undertake.

5. Thirdly, he alleged they had contravened s 354 of the FW Act, with respect to Mr Ravbar (ASOC at [162]), by his actions described in [136] of the ASOC above, in that he took that action because (ASOC at [160]):

   (a)Universal Cranes’ employees were not covered by a CFMEU pattern agreement;

   (b)Universal Cranes proposed that Universal Cranes’ employees would not be covered by a CFMEU pattern agreement.

   and that conduct “disadvantaged Universal Cranes in that Universal Cranes was unable to perform cranage services in or about October 2012 or thereafter during the day” (ASOC at [161]).

6. Further, with respect to Mr Sutherland (ASOC at [165]), by his actions described in [137]–[150] of the ASOC above, in that he took that action because (ASOC at [163]):

   (a)Universal Cranes’ employees were not covered by a CFMEU pattern agreement;

   (b)Universal Cranes proposed that Universal Cranes’ employees would not be covered by a CFMEU pattern agreement.

   and that conduct “disadvantaged Universal Cranes in that Universal Cranes was unable to perform cranage services in or about October 2012 or thereafter during the day” (ASOC at [164]).

7. Fourthly and finally, with respect to Mr Ravbar (ASOC at [166]), the Commissioner relied upon s 550 of the FW Act to allege that he was liable for Mr Sutherland’s contraventions of the FW Act as described above (at [155], [159] and [165] of the ASOC) because he:

   (a)[had] aided, abetted, counselled and/or procured the contraventions;

   (b)was directly or indirectly knowingly concerned in or a party to the contraventions;

   (c)[had] conspired with Mr Sutherland to effect the contraventions.

8. As well as denying all of the alleged contraventions, the salient aspects of the respondents’ amended defence with respect to this incident were as follows:

   (a)the individual respondents denied the allegations in [134], [135] and [136] because they claimed they were untrue and the CFMEU claimed that it did not know, and did not therefore admit, those allegations (amended defence at [134], [135] and [136]);

   (b)Mr Sutherland and Mr Toyer denied the allegations in [137] and said further that “at the request of Mr Cradden [they] attended the Universal Cranes yard at Murrarie” and the other three respondents (Mr Ravbar, Mr Close and the CFMEU) claimed that they did not know, and did not therefore admit, those allegations (amended defence at [137]);

   (c)Mr Sutherland denied the allegations in [138], [139], [140], [141], [144], [147] and [148] and the other four respondents claimed that they did not know, and did not therefore admit, those allegations (amended defence at [138]–[141], [144] and [147]–[148]);

   (d)all of the respondents claimed that they did not know, and did not therefore admit, the allegations in [142], [143], [145] and [149] (amended defence at [142], [143], [145] and [149]);

   (e)Mr Sutherland denied the allegations in [146] and said further that “Mr Cradden had a conversation, but that [he] took no active part in the conversation” and the other four respondents claimed that they did not know, and did not therefore admit, those allegations (amended defence at [146]); and

   (f)all of the respondents denied the allegations in [166] because: of the matters pleaded in [134]–[136] of the amended defence, namely their claims that those allegations were untrue; in the alternative, [137], [146] and [147] of the amended defence, namely Mr Sutherland’s and Mr Toyer’s description of this incident and; in the alternative, because “further and alternately, [Mr Ravbar] did not know [Mr Sutherland’s] reasons or intentions for acting” (amended defence at [166]).

   Liability of the CFMEU

9. The Commissioner’s case against the CFMEU relied upon ss 793 and 363 of the FW Act. Relying upon those provisions, the Commissioner claimed that the CFMEU was liable for the actions or conduct of the other four respondents because (ASOC at [167]–[170]):

   167.The actions of Mr Ravbar, Mr Close, Mr Toyer and Mr Sutherland pleaded herein were engaged in on behalf of the CFMEU because each of Mr Ravbar, Mr Close, Mr Toyer and Mr Sutherland, respectively, took the said action in their capacity as an official and/or organiser of the CFMEU.

   168.The conduct of each of Mr Ravbar, Mr Close, Mr Toyer and Mr Sutherland pleaded herein was engaged in as an employee of the CFMEU.

   169.Mr Ravbar and Mr Close were, in engaging in the conduct pleaded herein, each acting within the scope of their actual or apparent authority in that they were each a person who had the capacity to direct the conduct of organisers of the CFMEU.

   170.Each of Mr Toyer and Mr Sutherland were, in engaging in the conduct pleaded herein, acting within the scope of their actual authority because they were each people who had the capacity to, on behalf of the CFMEU, to liaise with and give directions to contractors, and they were acting on Mr Ravbar’s or Mr Close’s direction.

10. Accordingly, the Commissioner alleged that, on the basis of the matters pleaded above (ASOC at [171]):

    a)the CFMEU is liable pursuant to s.793 of the FW Act for the conduct of, and contraventions by, each of Mr Ravbar, Mr Close, Mr Toyer and Mr Sutherland; or in the alternative,

    b)the action taken by each of Mr Ravbar, Mr Close, Mr Toyer and Mr Sutherland is action of the CFMEU pursuant to s.363(1)(b) of the FW Act and the CFMEU is liable for their respective contraventions.

11. In their amended defence at [167]–[171], the respondents denied the allegations in each of these paragraphs of the ASOC for the reasons pleaded in their amended defence, namely their claims that none of the four individual respondents had committed any of the alleged contraventions of the FW Act.

    Alleged contraventions not pursued

12. Before leaving this summary of the pleaded contraventions, it is convenient to identify a number of alleged contraventions raised by the Commissioner’s ASOC that he elected not to pursue. First, at the outset of the trial, the Commissioner announced that he no longer wished to pursue the contraventions pleaded in [121](c) and (d), and [122]–[129] inclusive of his ASOC. Those paragraphs concerned an allegation that, at the 23 August 2012 meeting, Mr Ravbar told Mr Smith (ASOC [121](c) and (d)) that:

    (c) the CFMEU was going to continue to target Universal Cranes unless Universal Cranes entered into a CFMEU pattern agreement; and

    (d)the CFMEU would make it very hard for Universal Cranes to operate if it did not agree to the CFMEU pattern agreement.

13. Secondly, during closing addresses, the Commissioner abandoned two further sets of alleged contraventions. They concerned:

    (a)[108]–[116] of the ASOC, which described a demand allegedly made by Mr Close to Mr Smith in late July 2012 as follows (ASOC at [108]):

    (a)Mr Smith raised with Mr Close that a ban had been placed on Universal Cranes by the CFMEU;

    (b)Mr Close stated to the following effect, “Unless Universal Cranes enter into the CFMEU pattern agreement, Universal Cranes will not work on CFMEU controlled sites”;

    (c)Mr Close stated to the following effect, “We know you are on your knees. We will keep going until you sign”.

    and,

    (b)[63]–[81] of the ASOC, which addressed an incident described as the First Port Connect incident which allegedly occurred in July 2012 as follows:

    63.In or about July 2012 Mr Cradden attend[ed] an Organisers’ Meeting conducted by Mr Ravbar and Mr Close. Mr Ravbar and Mr Close, in the presence of and acting in conjunction with the other, stated words to the effect:

    (a)We have had meetings with Mr Smith regarding a CFMEU pattern agreement with Universal Cranes and that things are not going well;

    (b)Mr Smith is standing his ground and is not cooperating with the CFMEU, and Mr Smith is going with his own enterprise agreement rather than a CFMEU pattern agreement;

    (c)We need to up the campaign against Universal Cranes because the enterprise agreement that Mr Smith had proposed is not acceptable;

    (d)Universal Cranes could not work on CFMEU sites until Mr Smith was prepared to “play ball”.

    (the “Further Direction”).

    64.The Port Connect Project (the “Project”) was for the Department of Main Roads, Queensland, for the upgrading of the existing motorway from the Gateway Arterial Road through to the Port of Brisbane and it included safety improvements and widening the motorway to a two-lane-each-way motorway including upgrading intersections, overpasses and involved about six kilometres of road infrastructure.

    65.Mr Cradden subsequently attended at the Project and observed a Universal Cranes franna crane operating at the Project.

    66.As at July 2012 Jason Zoller (“Mr Zoller”) was the Construction Manager at the Project.

    67.Mr Cradden and Mr Zoller had a conversation to the following effect:

    (a)Mr Cradden said words to the effect, “Look Jason there’s a dispute going on at the moment with Universal Cranes. We are having dramas with them. It’d probably be in the interests of your job over here to use an alternative crane company because it’s going to get nasty. You’re going to get a lot of union activity on your job, so I recommend you get rid of them and bring someone else in”;

    (b)Mr Zoller said words to the effect, “Oh shit. Well, there isn’t much I can do. I have a say but other people have control. I’ll take it on board though and get back to you”;

    (c)Mr Cradden said words to the effect, “Well mate if you don’t get it sorted, I’ll keep coming back and there will be stoppages. It’ll just be easier if you get rid of them”.

14. It is worth noting that the question whether the CFMEU had targeted Universal Cranes and/or had commenced a campaign or implemented a ban against that company, as mentioned in these allegations, was raised in Mr Smith’s evidence (see [188] below). Furthermore, the significance of this first Port Connect incident, insofar as it affected Mr Cradden’s credibility, was also mentioned in the CFMEU’s closing submissions (see below). Later in these reasons, I will return to the effect that the abandonment of this first Port Connect incident had on Mr Cradden’s credit. The CFMEU’s submissions referred to above were as follows:

    185.Mr Cradden gave evidence that he knew that ensuring compliance at his job sites was his responsibility. He also gave evidence that it was his position that Universal Cranes could not comply with the requirements at either of his main sites. He even gave evidence that the First Port Connect incident occurred because he was acting on his own volition.

    186.Mr Cradden knew that he was responsible for ensuring compliance with the jump up clause and that Universal Cranes were not capable of complying. Rather than engage in the time consuming process of ensuring compliance he chose to act precipitously and demand that the principal contractors remove Universal Cranes.

    187.When all of these matters are considered together with the denials of any directions being given, the evidence of the other witnesses that they did not hear such directions being given and Mr Cradden’s own inability to recall the alleged directions with any precision, the only credible explanation is that Mr Cradden was acting on his own volition.

    188.Such a conclusion is also consistent with the fact that, despite the protracted negotiations, there were only a small number of incidents (there [sic – three] or four depending on the number of visits to Legacy Way) which were confined to Mr Cradden’s job sites. If the [CFMEU] truly did place a ban on Universal Cranes and if Mr Ravbar and Mr Close were giving directions of the type alleged, it would be expected that such action would have occurred on sites other than Mr Cradden’s. However, the [Commissioner] makes no such allegations.

    (Footnotes omitted)

    THE RELEVANT LEGISLATIVE PROVISIONS AND THE RELATED PRINCIPLES

15. It can be seen from the terms of the alleged contraventions set out above that the Commissioner has claimed that the four individual respondents have variously contravened ss 340, 343, 354 and 550 of the FW Act. The relevant parts of those provisions of the FW Act are set out hereunder. First, it is convenient to mention s 140 of the Evidence Act 1995 (Cth) (Evidence Act). It provides:

    (1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

    (2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

    (a)       the nature of the cause of action or defence; and

    (b)       the nature of the subject‑matter of the proceeding; and

    (c)       the gravity of the matters alleged.

1. The operation of this section was considered most recently in the present context by the Full Court in Australian Building and Construction Commissioner v Hall [2018] FCAFC 83 (ABCC v Hall). There the Court referred with approval (at [98]) to the following observations of the primary judge (see Australian Building and Construction Commissioner v Hall (2017) 269 IR 28; [2017] FCA 274 at [18]–[20]):

   18.… The contraventions alleged by the Director have to take into account the fact that the contraventions alleged are contraventions of civil remedy provisions of the Fair Work Act. They are, accordingly, properly to be regarded as “quasi-criminal”: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2002] ATPR 41-901 at [53] per Goldberg J; BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 239 IR 363 at [68]-[69] per Collier J.

   19.The standard of proof referred to in s 140(2) is a re-statement of the standard of proof referred to by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336: Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221; 198 IR 143 at [13] per Logan J. When commenting upon the evidence required in a petition for divorce on the ground of adultery under the Marriage Act 1928 (Vic), Dixon J in Briginshaw observed (at 362):

   But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

   See also at 347 per Latham CJ. See also: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [29]-[32] per Weinberg, Bennett and Rares JJ; Darlaston v Parker (2010) 189 FCR 1; 196 IR 307 at [17] per Flick J.

   20All such findings of fact as have been made in respect to the Director’s allegations as to contraventions have been made against the standard imposed by s 140(2) of the Evidence Act. Findings as to a contravention of the Fair Work Act are not findings lightly to be made.

2. While I am dealing with evidentiary matters it is also appropriate to mention the submissions that were made about drawing inferences. First, both parties relied upon the ruling in Jones v Dunkel (1959) 101 CLR 298 to submit that an inference should be drawn from the failure of the other to call a witness. On the Commissioner’s part, that contention was made with respect to the CFMEU’s failure to call Mr Sutherland. On the CFMEU’s part, it was made with respect to the Commissioner’s failure to call Mr Schalck.

3. In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293; [2010] FCA 784 (McDonald), Barker J quoted (at [47]) Cross on Evidence (8^th Australian ed, 2010) by JD Heydon to provide the following helpful summary of the application of this rule:

   •The unexplained failure by a party to give evidence, to call witnesses or to tender documents or other evidence or produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case [Cross on Evidence at [1215], p 40].

   •While the rule in Jones v Dunkel permits an inference that the untendered evidence would not have helped the party who failed to tender it, and entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken, and the more readily to draw any inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to give or call evidence, the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference. Nor does the rule prevent any inference favourable to the party who has failed to call the witness being drawn: other evidence may justify the drawing of the inference [Cross on Evidence at [1215], p 42].

   •The rule only applies where a party is required to explain or contradict something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings or by the course of evidence in the case. No inference can be drawn unless evidence is given of facts requiring an answer. If there is no issue between the parties on a matter, there is nothing to answer. If there is an issue between them but the party bearing the burden of proof has tendered no evidence of it, the opponent is not required to answer [Cross on Evidence at [1215], p 42].

   •The most difficult aspect of the rule turns on the failure to call non-party witnesses. It is easy to apply the principle where it is the party who fails to give evidence. But the rule cannot be applied to the non-calling of the witness unless it would be natural for the party to call the witness or the party might reasonably be expected to call a witness, or a missing witness would be expected to be called by one party rather than another [Cross on Evidence at [1215], p 43-44].

   (References in original)

4. Secondly, the CFMEU also relied upon what Barker J said earlier in McDonald about drawing inferences more generally. On that topic, his Honour said (at [42]–[44]):

   42So far as inferences are concerned, in Holloway v McFeeters (1956) 94 CLR 470 (Holloway), Williams, Webb and Taylor JJ, in a joint judgment, at 480, note that inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. Their Honours referred, at 480-481, to the decision of the High Court in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 (Bradshaw) which made the following points (by reference to authority), at 5:

   •In a civil cause, you need only circumstances raising a more probable inference in favour of what is alleged.

   •Where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference.

   •They must do more than give risk to conflicting inferences of equal degree of probability so that the choice between them is (no) mere matter of conjecture.

   43In Bradshaw, the Court stated that, all that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury in issue in that case arose from the defendant’s negligence. By “more probable” is meant no more than that upon a balance of probabilities, such that an inference might reasonably be considered to have some greater degree of likelihood.

   44Notwithstanding the apparent simplicity with which the principles by which facts may be inferred in a given case may be stated, the application of these principles does not always lead to easy outcomes. In Holloway, the joint judgment found that it was reasonably open to the jury to find that the death of the deceased was caused wholly or in part by the negligence of the driver of an unidentified vehicle and so the plaintiff succeeded. However, Dixon CJ and Kitto J dissented concerning the sufficiency of the evidence. In Luxton v Vines (1952) 85 CLR 352 in a very similar fact situation to those in Holloway, the High Court held, again by a 3-2 majority that the plaintiff’s claim failed. In Jones v Dunkel (1959) 101 CLR 298, the High Court again divided 3-2 on the question of the sufficiency of the plaintiff’s case in favour of the plaintiff.

5. Finally, the CFMEU relied upon the Queensland Court of Criminal Appeal decision in R v Robinson [1977] Qd R 387 (Robinson) to submit adverse inferences should be drawn with respect to the credibility of Mr Smith and Mr Cradden because of, what they claimed were, “the substantial parts of the applicant’s case which have been abandoned”.

6. In Robinson, Dunn J (with whom Wanstall ACJ and Douglas J agreed) did not consider that pleadings should be “regarded as positive allegations of the truth of the facts stated, for all purposes” (at 393). Nonetheless, his Honour went on to observe that inferences may be drawn between a “discrepancy in a significant particular” (at 394) and questions asked based on instructions as follows (at 394):

   By contrast, cross-examining counsel is concerned with primary facts. His instructions are as to primary facts, and it is his obligation – a strict obligation – that, if he “puts” occurrences to witnesses, he “put” them in accordance with his instructions. This being so, the instructions may be inferred from the questions. If there is a discrepancy in a significant particular (I do not mean a minor or explicable discrepancy, for whilst perfection in communication between client and legal adviser is aimed at, it is not always achieved) between questions based on instructions as inferred and the evidence of the person from whom the instructions must be taken to have come, it seems to me to be quite permissible for a judge to ask the jury to have regard to the discrepancy in evaluation the evidence.

   The truth is, I think, that whilst in a strict sense questions are not evidence, questions asked (and indeed questions unasked) form part of the conduct of his client’s case by counsel. The conduct of the case is something from which the jury may be asked to draw inferences, so long as due regard is had to the requirement of fairness and the possibility of human error (especially in relation to peripheral matters). I am therefore of the opinion that Ground 6 is not made out.

7. Having dealt with these evidentiary matters, I now turn to the various provisions of the FW Act which the Commissioner claimed the respondents contravened. First, s 340 provides:

   (1)A person must not take adverse action against another person:

   (a)       because the other person:

   (i)        …

   (ii)       has, or has not, exercised a workplace right; or

   (iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

   ...

8. The expression “workplace right” which appears in s 340 is relevantly defined in s 341 of the FW Act in the following terms:

   Meaning of workplace right

   (1)       A person has a workplace right if the person:

   …

   (b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

   …

   Meaning of process or proceedings under a workplace law or workplace instrument

   (2)Each of the following is a process or proceedings under a workplace law or workplace instrument:

   …

   (e)making, varying or terminating an enterprise agreement;

   …

   (k)any other process or proceedings under a workplace law or workplace instrument.

   …

9. Furthermore, the expression “adverse action” that appears in s 340 is relevantly defined in s 342 of the FW Act as follows:

   (1)The following table sets out circumstances in which a person takes adverse action against another person.

Meaning of adverse action
Item	Column 1 Adverse action is taken by …	Column 2 if …
…
7	an industrial association, or an officer or member of an industrial association, against a person	the industrial association, or the officer or member of the industrial association: (a)     organises or takes industrial action against the person; or (b)     takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment; or (c)     if the person is an independent contractor–takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or (d)     if the person is a member of the association–imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member).

(2)       Adverse action includes:

(a)threatening to take action covered by the table in subsection (1); and

(b)organising such action.

…

(Emphasis added)

1. The parties agreed that two central issues fall to be determined with respect to s 340. They are as follows:

   (a)whether any action was taken at all; and

   (b)to the extent that any action was taken, whether that action had the effect of prejudicing Universal Cranes in respect of any contract for services they had.

   It should be recorded that there was no dispute that at all relevant times Universal Cranes had a workplace right as defined in s 341(1).

2. The first central issue above is a question of fact. The paragraphs of the ASOC which describe the conduct of the respondent concerned relating to each of the four incidents are set out above (see the first Legacy Way incident at [20]; the second Legacy Way incident at [25]; the second Port Connect incident at [34]; and the third Port Connect incident at [42]).

3. On this aspect, it is worth noting that in Tattsbet Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62, Jessup J (with whom Allsop CJ and White J agreed) said (at [119]) that there is a history of many first-instance judgments of this Court where: “… it has been treated as uncontroversial that the party making an allegation that adverse action was taken ‘because’ of a particular circumstance needs to establish the existence of the circumstance as an objective fact …”. See also Fair Work Ombudsman v Australian Workers’ Union (2017) 271 IR 139; [2017] FCA 528 (Fair Work Ombudsman) at [72] per Bromberg J and the authorities there cited.

4. As to the second central issue above, to constitute prejudice for the purposes of s 342(1) item 7(c), the Commissioner must establish that there was a “prejudicial alteration” to Universal Cranes’ position. It is sufficient if that prejudicial alteration “is real and substantial rather than merely possible or hypothetical”. It will occur “even though the [person concerned] suffers no loss or infringement of a legal right” (see Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244; [2012] FCAFC 63 (Qantas) at [30] and [32]).

5. The prejudice relied upon by the Commissioner is described in the ASOC for each incident: for the first Legacy Way incident see [20] above at (26); for the second Legacy Way incident see [26] above at (41) and (42); for the second Port Connect incident see [35] above at (92) and (93); and for the third Port Connect incident see [43] above at (151) and (152). In summary, it was to stop Universal Cranes from performing crane services for that project for which it had been hired to perform. For the third Port Connect incident, it was, insofar as Mr Ravbar is concerned, to stop Universal Cranes from performing work that it had been engaged to perform for that project. With respect to Mr Sutherland, it was to prevent Universal Cranes from performing the crane services for which it had been hired to perform at that project on that day and from being hired to perform crane work during the day thereafter.

6. Next, s 343 relevantly provides:

   (1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

   (a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

   (b)exercise, or propose to exercise, a workplace right in a particular way.

   Note:    This subsection is a civil remedy provision (see Part 4-1).

   …

7. It is well-established that the expression “intent to coerce” in s 343 carries within it a requirement to establish two discrete elements. Those elements were authoritatively identified in Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39; [2016] FCAFC 72 (Esso FC) as follows (at [174] (Buchanan J; Siopis J agreeing):

   Coercion has been held to require the satisfaction of two elements: negation of choice; and, the use of unlawful, or illegitimate or unconscionable means (see the discussion in Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 (Seven Network); Fair Work Ombudsman v National Jet Systems Pty Ltd (2012) 218 IR 436 and Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172).

8. This conclusion and the line of authorities upon which it was based do not appear to have been affected by the recent High Court judgment on appeal from that judgment (see Esso Australia Pty Ltd v Australian Workers’ Union (2017) 350 ALR 404; [2017] HCA 54 (Esso HC) at [61]–[63] (Kiefel CJ, Keane, Nettle and Edelman JJ)).

9. Accordingly, the Commissioner accepted that, in order to establish a contravention of s 343, he must establish that:

   (a)the action alleged was taken against Universal Cranes;

   (b)the action was taken for the alleged purpose;

   (c)in taking the action the respondents had an intention to coerce Universal Cranes, that is, to negate its choice; and

   (d)the action to be taken, or actually taken, was unlawful, illegitimate or unconscionable.

10. With respect to the third element above, the intent to negate choice must involve “a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply” (see National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114; [2002] FCA 441 (NTEIU) at [103] per Weinberg J, quoted with approval by Buchanan and Griffiths JJ in Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172; [2013] FCAFC 160 at [75]).

11. With respect to the last two elements above, a proscribed intent to coerce is sufficient if the conduct or action concerned is, objectively assessed to be, unlawful, illegitimate or unconscionable. While it does not arise in this matter, it is therefore unnecessary for the conduct or action to actually be undertaken (Esso FC at [176], [180], [194] and [200]–[201]) and Esso HC at [61]).

12. In this matter, the intent and conduct pleaded concerning each of the four incidents was essentially the same: for the first Legacy Way incident see [22] above at (30); for the second Legacy Way incident see [27]–[29] above at (46), (48) and (50); for the second Port Connect incident see [36] and [37] above at (97) and (99); and for the third Port Connect incident see [44] and [45] above at (156) and (158). With each incident the intent pleaded is follows:

    (a)[The individual respondent concerned] intended to apply pressure to Universal Cranes by interfering with its capacity to perform work and earn income so as to force it to seek to make an enterprise agreement on the terms of the CFMEU pattern agreement;

13. And with each incident the conduct pleaded is as follows:

    (b)the exertion of the pressure was unlawful, illegitimate and/or unconscionable in that it was:

    (i)in contravention of s.340 of the FW Act;

    (ii)action which was adverse to Universal Cranes that neither [the individual respondent concerned] nor the CFMEU had any entitlement to undertake.

1. This brings me to the explanation advanced by the CFMEU for this relatively large gathering of its officials outside Universal Cranes’ yard on the early morning of 16 October 2012. It claimed that Mr Cradden, not Mr Ravbar, was the person responsible for coordinating this gathering. It claimed he did this because he was concerned that he had not met his responsibility to enforce the JUCs at the Port Connect site, it being one of the sites for which he was responsible. Indeed, in his evidence, Mr Close suggested that this gathering of organisers was something that Mr Cradden might have organised “with his mates” (see at [391]). In support of this contention, the CFMEU pointed to the first Port Connect incident in July 2012 where Mr Cradden had admitted in his evidence that he had acted on his own initiative (see at [54]–[55] above). It also pointed to the fact that all four of the incidents at the centre of this proceeding involved sites for which Mr Cradden was responsible.

2. Because I do not consider this explanation withstands close analysis, I do not accept it. In the first place, while Mr Cradden may have acted on his own initiative during the first Port Connect incident in July 2012, I do not accept that he had the personal incentive or authority to recruit five other organisers to carry out the activities that constituted the third Port Connect incident in October 2012. The reason why the incentive was not present has already been alluded to above. It is that the activities on this day were not directed to a specific project site, but rather to Universal Cranes’ yard and to following its cranes to whichever work sites they happened to travel. Mr Toyer’s fruitless journey to Ipswich underscores this factor. Furthermore, while organisers such as Mr Cradden were responsible for the enforcement of the JUCs on the sites for which they were responsible, as I have explained above, by October 2012, enforcement of JUCs was not the central focus in the dealings between the CFMEU and Universal Cranes. Instead, that central focus was the contentious provisions of the CFMEU model agreement mentioned above and the persons responsible for that issue were Mr Close and Mr Ravbar, not Mr Cradden. On this aspect, I should add that I consider Mr Zoller was likely to have confused his discussions with Mr Cradden in the lead up to the third Port Connect incident with those that occurred in the lead up to the second Port Connect incident (see at [352] above). That is to say that I consider those discussions were more likely to have occurred in July 2012 and were more likely to have been directed to the enforcement of the JUCs. As for Mr Cradden’s lack of authority, that is demonstrated by Mr Toyer’s evidence (which I accept) that one organiser did not have the authority to give a binding direction to another (see at [247] above).

3. In addition to the explanation outlined above, the CFMEU also relied upon Mr Ravbar’s denial that he gave the third Port Connect direction and upon the evidence of Messrs Toyer, Ingham and Close that they had not heard him give such a direction at the organisers’ meeting in October 2012.

4. I will commence with the latter evidence. First, Mr Toyer did say in his evidence that he did not recall the third Port Connect direction being given and that if it had been given he thought he would have recalled it (see at [369] above). However, he also claimed that he did not hear Universal Cranes discussed at an organisers’ meeting in October 2012 (see at [369] above). Since I have concluded above that such discussions were likely to have occurred at organisers’ meetings at that time, I infer that, through distraction, absence from the meeting room or for some other similar reason, Mr Toyer must have missed hearing those discussions. If he missed hearing those discussions, I infer he could also have missed hearing the third Port Connect direction if it was given at that organisers’ meeting. I do not therefore put much weight on Mr Toyer’s evidence on this aspect.

5. Mr Ingham also said that he did not remember such a direction being given at the October organisers’ meeting and, if it was given, he said he was not there (see at [399] above). For his part, while he agreed that Universal Cranes may have been discussed at the organisers’ meeting in October, Mr Close denied hearing Mr Ravbar give any such direction at that meeting (see at [390] above). This evidence obviously does not exclude the possibility that the direction was given and Mr Ingham and Mr Close were not in the room, or, if they were, they did not hear it. Accordingly, as with Mr Toyer’s evidence, I do not put much weight on their evidence on this aspect.

6. Turning then to Mr Ravbar’s denial, as it was given in his examination-in-chief, the terms of that denial are set out above (see at [395]). With respect to that denial, it is significant, in my view, that Mr Ravbar did not disclaim the possibility that “instructions” were given at the organisers’ meeting in question. Instead, he claimed that such instructions were not his responsibility and were instead the responsibility of the “senior officers”. In cross-examination, Mr Ravbar made a number of related denials, as follows, which, together with the inaccurate parts of his evidence discussed above, have led me to conclude that I should place little if any weight on his denial with respect to the third Port Connect direction. First, in cross-examination, Mr Ravbar expressly denied that Universal Cranes’ refusal to sign a CFMEU model agreement was ever discussed at an organisers’ meeting in 2012 (see at [277] above). This denial is inconsistent with the conclusion I have reached above (see [434]–[435]) about the likelihood of Universal Cranes being discussed at organisers’ meetings in 2012, specifically from about mid August, and it is also contradicted by the evidence of Mr Close (see at [272] above). Secondly, Mr Ravbar gave the following answers about the CFMEU’s wish to have Universal Cranes enter into a CFMEU model agreement:

   You knew that, by the middle of 2012, there had been no success in having Universal Cranes sign up to a union agreement, didn’t you?---I knew that we hadn’t reached an outcome with Albert, but we hadn’t reached an outcome in regards to the compliance problems either.

   And I suggest that that was a matter – that company not signing up was a matter that you yourself were not happy about?---Didn’t really care, to be frank.

7. Since this answer refers to both the JUC enforcement, or compliance, issue and having Universal Cranes enter into a CFMEU model agreement, I consider it is inconsistent with the conclusion I have reached above about the CFMEU’s true motivations with respect to the latter issue (see at [433] above).

8. Thirdly, Mr Ravbar gave the following evidence about the state of the negotiations with Universal Cranes to have it enter into a CFMEU model agreement as at October 2012:

   By the time that one gets to October of 2012, you were aware that Universal Cranes had still not entered into a union agreement?---As I said earlier, I don’t recall where the status was for the rest of 2012.

   And this was the case notwithstanding that you yourself had met with him and tried to persuade him?---I met with Albert as a – I keep repeating – is that to talk about relationships, the industry problem about non-compliance. Yes, great if he down the track signed an agreement, but if he didn’t comply with industry standards now, then we’re never going to get an agreement.

9. For the reasons I have outlined at length in the discussions above, I do not accept as accurate Mr Ravbar’s claim to have no knowledge of the status of those negotiations “for the rest of 2012”.

10. Having regard to all these unsatisfactory aspects of Mr Ravbar’s evidence, I do not put any weight on his denial of the third Port Connect direction (see at [395] above).

11. For these reasons, I do not accept the CFMEU’s explanation for the presence of the relatively large group of its officials prior to and during the third Port Connect incident. As well, I do not place much weight on the evidence of Messrs Toyer, Close and Ingham with respect to them not hearing the third Port Connect direction and I place no weight on the denial of Mr Ravbar. Accordingly, notwithstanding the fact that the Commissioner bears the onus on this issue and notwithstanding the effect of s 140 of the Evidence Act, and having regard to all the matters discussed above, including the circumstances in which the third Port Connect direction was given, the terms of that direction, the gathering of CFMEU’s officials outside Universal Cranes’ yard on the morning of 16 October 2012, the absence of any incentive for Mr Cradden to organise that gathering, and the lack of authority for him to do so, I am reasonably satisfied that there is a greater degree of likelihood (see the discussion at [57] and [60] above) that Mr Ravbar gave the third Port Connect direction essentially in the terms described by Mr Cradden. I have reached this conclusion notwithstanding the concerns I have expressed earlier in these reasons about Mr Cradden’s evidence with respect to the other three incidents. In other words, I consider Mr Cradden’s evidence with respect to this incident is sufficiently supported by the combined weight of all the factors above to be accepted as accurate.

12. Having dealt with the third Port Connect direction, next, it is necessary to consider Mr Sutherland’s role in the third Port Connect incident itself. The details of his role are pleaded at [137] to [149] of the ASOC above (see at [42] above). As the CFMEU pointed out in its submissions, the contraventions alleged against Mr Sutherland rely upon him being a principal offender. Accordingly, they claimed, correctly in my view, that the Commissioner must prove that Mr Sutherland took the actions which constituted the contraventions alleged against him. As developed in closing submissions, the issue of fact with respect to Mr Sutherland’s role in the third Port Connect incident was reduced to a narrow one. It is whether there is any evidence that Mr Sutherland took any action to block the movement of the Universal Cranes franna crane at the Port Connect site during that incident.

13. Since Mr Sutherland did not give any evidence and Mr Toyer was not present during the third Port Connect incident, the only evidence as to what occurred during the third Port Connect incident came from Mr Cradden and Mr Zoller. The following are the important parts of their evidence bearing on Mr Sutherland’s role.

14. First, Mr Cradden’s evidence as to his discussions with Mr Sutherland immediately before arriving at the Port Connect site was as follows:

    Okay. Now, when you were – you mentioned that Mr Sutherland parked his car next to yours, did you have any discussion with him whilst you were following the crane?---Yes.

    And how did that – what means did you use for that discussion?---We were talking over the phones.

    Right. And what was the effect of that discussion?---I just said, “I think this one’s heading to Port Connect.”

    Right?---“Let’s follow it. I think that’s where it’s going.”

    And did he make any response?---He just said, “Let’s keep following it.”

    Okay. Now, you’ve told the court that you parked behind it and you’ve told the court why. Did anyone come and speak to you after you had parked in that location?---Yes.

    And who was that?---Jason Zoller.

15. Next, Mr Cradden’s evidence as to what happened when the Universal Cranes franna crane stopped at the Port Connect site was as follows:

    And can you recall where at the Port Connect job it stopped?---Yes. There was a sliproad coming in after I made my way on to the project.

    Right. And sliproad off what?---Off the Gateway Motorway on to the Port Connect project.

    And – and when you observed the franna crane to stop at that location, did you do anything?---Yes. I parked behind it.

    You – I beg your pardon?---I parked behind it.

    Right. And why did you park behind it?---So it couldn’t move.

    Right. And did anyone else park nearby?---Andrew Sutherland parked beside me.

    Right. Okay. Where was his car in relation to the crane?---Well, mine was directly behind it.

    Yes?---And I think it was to the left of my vehicle.

    From where you had parked your car, was the crane able to move past your car?---No.

16. Then, Mr Zoller’s evidence as to what he observed when he arrived at gate 11 where the Universal Cranes franna crane was located was as follows:

    And when you got to gate 11, what – did you observe anything there?---Well, straightaway I noticed there was a – a number of vehicles parked in the – in the entryway at the end of the gate. Yes.

    Yes. And those vehicles, were they vehicles that belonged to the site?---No, no, they weren’t.

    And did you know or come to understand whose vehicles they were?---Yes, yes.

    And whose vehicles were they?---They were – they belonged to the CFMEU organisers, yes.

    Now, you mentioned – when you were there and observing these vehicles, was there a Universal crane or cranes present?---Yes, there was.

    And where was it located in respect to the vehicles that you’ve referred to, the CFMEU vehicles?---Yes, so the – the gate – the gate work area itself was quite short. It would have been a few hundred metres long. The – the union officials were parked in the gate entry, and the – and the – and the crane itself was at the worksite, you know, probably, you know, 30 metres in front of the – the vehicles, yes.

    Yes. And as a result of the – where the CFMEU vehicles were parked, was – were any other vehicles or plant able to get in or out from that gate?---You would have been able to get out of the gate if you got past the crane and the CFMEU vehicles. But the – the vehicle entry, being a median motorway, was probably, you know, four or five metres wide. So once they were parked in the gate, you – you couldn’t get back into the gate. Yes.

17. Finally, Mr Zoller’s evidence about the discussions he had with another CFMEU official on the site was as follows:

    Now, when you were having this discussion with Mr Cradden that you’ve just told the court about, was there anybody else from the CFMEU there as part of that discussion?---Yes, there was – there was other – other people there. Yes, yes.

    And do you know their names?---Not – not all of them. I know – I knew Steve Toyer reasonably well. He was definitely there. And there was another guy with a beard. I can’t recall his name.

    So there was Mr Toyer?---Yes.

    And did you say there was somebody else there?---Yes, yes.

    And you mentioned a beard. Who had the beard?---I can’t recall the guy’s name, to be honest, no.

    Was the bearded person Mr Toyer or somebody else?---Somebody else, yes.

    Right. Okay. You’ve said that Mr Cradden said they were there to stop the crane from working. Did either of the CFMEU people say anything to you at that point?---Can you repeat that, sorry?

    Did either of the other CFMEU people who were there say anything to you at that point?---Yes, yes, Steve Toyer did. Steve Toyer spoke to me.

    And what did he say?---He was a bit more vocal with the whole thing. Basically, he told me to – you know, this crane wasn’t going to work, “you had better sign it off and get it off the job. We don’t want them – we don’t want them working here any more.”

    Did any of the CFMEU people who were there tell you how it was they came to be there?---Not – not in that conversation, no, no.

18. In addition to this oral evidence, there is the report Mr Zoller prepared soon after the third Port Connect incident (see at [366] above).

19. The CFMEU submitted that this evidence did not establish that Mr Sutherland took any action to block the movement of the Universal Cranes franna crane at the Port Connect site. In response, the Commissioner submitted that Mr Cradden’s evidence demonstrated that both he and Mr Sutherland had followed the Universal Cranes franna crane to the Port Connect site and they had discussions by telephone along the way. Further, when they arrived at the site, Mr Cradden parked his vehicle behind the Universal Cranes crane and Mr Sutherland parked his vehicle beside Mr Cradden’s vehicle. The Commissioner submitted that it was significant that Mr Sutherland “didn’t go and park around the corner”. Thus, he submitted, there was an adequate basis for inferring that both Mr Cradden and Mr Sutherland were involved in blocking the Universal Cranes crane. Finally, while the Commissioner accepted that Mr Zoller was clearly incorrect about Mr Toyer being at the site, (and I interpose to note that I have already found at [489] above that Mr Toyer was not present for the third Port Connect incident), he submitted it should be inferred that Mr Zoller had mistaken Mr Sutherland for Mr Toyer. On that basis, he submitted, that on Mr Zoller’s evidence it was Mr Sutherland who was being “vocal” about stopping the Universal Cranes crane thus providing further evidence for his involvement in blocking the Universal Cranes crane.

20. I do not consider the second inference is open. Mr Zoller said there was at least one other CFMEU official present at gate 11 at the time of the incident, apart from the person who he mistook for Mr Toyer. I do not therefore consider there is any basis, on the evidence set out above, upon which I could distinguish between those people. However, bearing in mind the onus and s 140 considerations mentioned above, I do consider the first inference is reasonably open. Whether Mr Sutherland parked his vehicle immediately behind the franna crane, as Mr Cradden did, or beside Mr Cradden’s vehicle, it is reasonably open to be inferred from their conduct leading up to the incident and the fact that Mr Sutherland parked his vehicle on the site itself, that he was directly involved in blocking the Universal Cranes crane. Furthermore, the second paragraph of Mr Zoller’s report supports the conclusion that the two CFMEU vehicles present at gate 11 were blocking the crane’s access (see at [366] above). Finally, I consider this inference is more readily to be drawn where Mr Sutherland, a respondent party in this proceeding, has failed to give evidence and explain his role during this incident (see the discussion at [59] above).

    CONCLUSIONS

21. Having regard to these findings of fact with respect to the third Port Connect direction, concerning Mr Ravbar and Mr Sutherland’s involvement in the third Port Connect incident itself, I turn now to consider the elements of each of the contraventions alleged against the two of them with respect to the third Port Connect incident.

22. While the third Port Connect direction is pivotal to the contraventions alleged against Mr Ravbar, there remains a number of other elements of those contraventions which the Commissioner must prove before each of those contraventions is established. Dealing first with the contravention of s 340, I have reached the following conclusions:

    (a)having found that Mr Ravbar gave the third Port Connect direction, s 361 places the onus on him to establish that he did not give that direction for any of the proscribed reasons pleaded at [150] of the ASOC (see at [43] above and the discussion at [97]–[102] above). For the reasons I have given above, I do not consider Mr Ravbar has discharged that onus;

    (b)similarly, having found that Mr Sutherland took the actions he did during the third Port Connect incident, s 361 places the onus on him to establish that he did not take that action for any of the proscribed reasons pleaded in [150] of the ASOC (see at [43] above). Since Mr Sutherland elected not to give any evidence, he has obviously failed to discharge that onus; and

    (c)on the issue of prejudice pleaded at [151] and [152] of the ASOC (see at [43] above), based on the evidence of Mr Zoller summarised at [365] above, I am satisfied that Universal Cranes suffered a real and substantial alteration to its position as a result of the third Port Connect incident for the purposes of s 342 item 7(c).

23. I am therefore satisfied that both of Mr Ravbar and Mr Sutherland contravened s 340 of the FW Act.

1. Next, for the purposes of the contraventions of s 343, I have reached the following conclusions:

   (a)the actions of both Mr Ravbar, in giving the third Port Connect direction, and Mr Sutherland, in blocking the Universal Cranes crane during the third Port Connect incident, were taken against Universal Cranes;

   (b)the reasoning set out in [511](a) and (b) above applies equally to the reasons and intention pleaded at [156](a) and [158](a) of the ASOC (see at [44]–[45] above);

   (c)Mr Sutherland had no legitimate entitlement to enter the Port Connect site on 16 October 2012 and he certainly had no legitimate entitlement to block the use of the Universal Cranes franna crane on that site on that day. For his part, Mr Ravbar had no legitimate entitlement to direct Mr Sutherland to take that action. The conduct of both of them was, therefore, illegitimate; and

   (d)since the matters pleaded at [156](b)(i) and (ii) and [158](b)(i) and (ii) of the ASOC are put as alternatives (see at [79] above) and, as indicated in (c) above, I am satisfied that the second alternative has been established, it is unnecessary to determine the issue raised at [80]–[82] above.

2. I am therefore satisfied that both of Mr Ravbar and Mr Sutherland contravened s 343 of the FW Act.

3. Finally, for the purposes of the contraventions of s 354, I have reached the following conclusions:

   (a)the reasoning set out in [511](a) and (b) above applies equally to the reasons pleaded in 160(a) and (b) and 163(a) and (b) of the ASOC (see [46] and [47] above); and

   (b)on the discrimination issue, based on the evidence of Mr Zoller summarised at [365] above, I am satisfied that Universal Cranes suffered the kind of adversity, adverse distinction, special burden and detriment discussed at [88]–[90] above.

4. I am therefore satisfied that both of Mr Ravbar and Mr Sutherland contravened s 354 of the FW Act.

5. Having found Mr Ravbar liable as a principal contravenor, I do not presently see any purpose in also determining his liability, if any, under s 550 of the FW Act. However, I will reserve to the Commissioner the right to further agitate this issue should he so wish to.

6. There remains the question of the CFMEU’s liability under ss 363 and 793. For the purposes of those provisions, I have reached the following conclusions:

   (a)the actions of Mr Ravbar and Mr Sutherland constituting the contraventions as described above were engaged in on behalf of the CFMEU because each of them took the action they did in their capacity as an official and/or organiser and, therefore, as an employee of the CFMEU;

   (b)in giving the third Port Connect direction, Mr Ravbar was acting within the scope of his actual or apparent authority in that he had the capacity to direct the conduct of organisers of the CFMEU; and

   (c)in engaging in the conduct of blocking the Universal Cranes crane, Mr Sutherland was engaging in conduct within the scope of his actual authority because he was acting on Mr Ravbar’s direction.

7. I am therefore satisfied that the CFMEU is liable pursuant to s 793 of the FW Act for the conduct of, and contraventions by, each of Mr Ravbar and Mr Sutherland described above. Having reached this conclusion, it is unnecessary to consider the alternative basis for liability of the CFMEU under s 363 of the FW Act (see at [171] of the ASOC set out at [51] above).

8. I will hear further from the parties as to the appropriate form of orders to be made consistent with these reasons and on the appropriate penalties to be imposed on Mr Ravbar, Mr Sutherland and the CFMEU.

I certify that the preceding five hundred and twenty (520) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:        

Dated:        10 August 2018

SCHEDULE OF PARTIES

QUD 881 of 2016
Respondents
Fourth Respondent:	STEVE TOYER
Fifth Respondent:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION